Indiana Michigan Power Co. v. Runge

• Decision Date: 06 October 1999
• Docket Number: No. 50A05-9811-CV-529.,50A05-9811-CV-529.
• Citation: 717 N.E.2d 216
• Parties: INDIANA MICHIGAN POWER COMPANY, Appellant/Cross-Appellee-Defendant, v. Raymond RUNGE and Tina Runge, Appellees/Cross-Appellants-Plaintiffs.
• Court: Indiana Appellate Court

717 N.E.2d 216

INDIANA MICHIGAN POWER COMPANY, Appellant/Cross-Appellee-Defendant, v. Raymond RUNGE and Tina Runge, Appellees/Cross-Appellants-Plaintiffs.

No. 50A05-9811-CV-529.

Court of Appeals of Indiana.

October 6, 1999.

Rehearing Denied November 23, 1999.

Carmen M. Piasecki, Nickle & Piasecki, South Bend, Indiana, Tom Watson, Curtis Renner, Watson & Renner, Washington, D.C., Attorneys for Appellant/Cross-Appellee.

Robert J. Palmer, Christopher R. Putt, May, Oberfell & Lorber, South Bend, Indiana, Attorneys for Appellees/Cross-Appellants.

OPINION

BROOK, Judge

Case Summary

Appellant-defendant/cross-appellee Indiana Michigan Power Company ("IMPC" or "appellant") files this interlocutory appeal to contest the trial court's jurisdiction over this case; the trial court's rulings on the admissibility of certain evidence; and the following trial court rulings on IMPC's motion for summary judgment: (1) denial of summary judgment on the claim of appellees-plaintiffs/cross-appellants Raymond Runge and Tina Runge ("Raymond" and "Tina," collectively referred to as "the Runges" or "appellees") that IMPC negligently designed, constructed, maintained, and operated its high-voltage electric power transmission line ("the line" or "the power line") that crosses their property and is the focus of the instant dispute; (2) denial of summary judgment on the Runges' claim that electric and magnetic fields (collectively referred to as "EMF") from the line constituted a trespass on their property; (3) denial of summary judgment on the Runges' claim that EMF from the line constituted a nuisance on their property; (4) denial of summary judgment on the Runges' claim that IMPC failed to warn them about possible harmful effects caused by EMF; (5) denial of summary judgment on the Runges' claim that IMPC breached an assumed duty to provide them with information about EMF; and (6) denial of summary judgment on the Runges' claim for punitive damages.

On cross-appeal, the Runges challenge the trial court's rulings on the admissibility of certain evidence and its grant of IMPC's motion for summary judgment on the issue of whether its alleged negligence caused them to suffer "adverse health effects."

We affirm in part and reverse in part and remand for further proceedings.

Issues

IMPC raises nine issues for review, which we reorder and restate as follows:

(1) whether the trial court or the Indiana Utility Regulatory Commission ("the IURC") has jurisdiction over the Runges' claims;

(2) whether the trial court erred in denying IMPC's motion for summary judgment on the Runges' claim for punitive damages;

(3) whether the trial court erred in denying IMPC's motion for summary judgment on the Runges' trespass claim;

(4) whether the trial court erred in denying IMPC's motion for summary judgment on the Runges' nuisance claim;

(5) whether the trial court erred in denying IMPC's motion for summary judgment on the Runges' claim that IMPC failed to warn them about possible adverse health effects caused by exposure to EMF;

(6) whether the trial court erred in denying IMPC's motion for summary judgment on the Runges' claim of breach of an assumed duty;

(7) whether the trial court erred in denying IMPC's motion for summary judgment on the Runges' claim of negligent design, construction, maintenance, and operation of the line;

(8) whether the trial court erred in admitting certain evidence designated by the Runges in opposition to IMPC's motion for summary judgment; and

(9) whether the trial court erred in denying IMPC's motion to exclude the testimony of the Runges' expert scientific witnesses.

The Runges raise three issues on cross-appeal, which we reorder and restate as follows:

(10) whether the trial court erred in granting IMPC's motion for summary judgment on the Runges' claim that IMPC's negligence proximately caused adverse health effects;

(11) whether the trial court erred in denying the Runges' motion to strike the affidavit of Dennis J. Dillman ("Dillman") concerning the scope of IMPC's two easements on the Runges' property; and

(12) whether the trial court erred in granting IMPC's motion to strike certain portions of Tina's deposition.

Facts and Procedural History

The facts relevant to our review indicate that on March 31, 1969, the former owners of the Runges' Elkhart County property in Middlebury, Indiana, conveyed to IMPC a "permanent right of way and easement for one electric power line" and the right to

locate, construct, reconstruct, erect, operate, use, repair, maintain, renew, remove, inspect, patrol, at any and all times, poles, towers or supported structures, conductors and all necessary or useful facilities and equipment with respect to such line for transmitting electric or other energy, including crossarms, wires, cables, guys, anchors, counter-poises, grounding system, and all other appurtenant equipment and fixtures ... in, on, along, over, through and across [the "Premises"].....

Together with the right to [IMPC] to... remove from the Premises ...any trees, overhanging branches, vegetation, obstacles or obstructions which may endanger the safety or interfere with the installation, use, or enjoyment of all or any of [IMPC's] Facilities; to add to the number of and relocate at any time or times all of [IMPC's] Facilities; and of ingress and egress to, over and from the Premises and any adjoining lands of Grantor at any and all times for the purposes of exercising and enjoying any and all the rights hereby vested in [IMPC].¹

On April 3, 1969, IMPC purchased a second easement with an area of approximately one-half acre that is located entirely within the first easement.² Both easement deeds contain a provision that states, "Grantor shall have the right to cultivate or otherwise use the Premises in any way not inconsistent with the easement hereby granted, but no building, structure or obstruction shall be placed by the Grantor under or within 85 feet (measured horizontally) of the centerline of the electric power line." The 345-kilovolt line was constructed in 1971, has been in operation since 1973, and is suspended above the backyard of the property. On March 21, 1989, Betty M. Nemeth deeded the property to the Runges "[s]ubject to any and all easements, current taxes, assessments, restrictions and rights of way of record."

The Runges and their two children moved into their house located on the property on March 30, 1989. In mid-April, while digging posts in the backyard, Raymond felt a sensation like "sharp grass" poking his ankles and developed a headache approximately two hours later. In late June 1989, the Runges and their friends and relatives experienced shocks while on the property. Soon thereafter, Raymond contacted IMPC about the shocking sensations, and IMPC employee William Pokorny ("Pokorny") visited the Runges in early July 1989 to measure the electrical and magnetic fields in the backyard. According to the Runges, Pokorny promised to "pass along any information, pro or con, that came across his desk regarding the effects of" EMF.

Pokorny then contacted Ali Nourai ("Nourai") at American Electric Power about calculating EMF levels on the Runges' property, but never shared the results of Nourai's calculations with the Runges. On August 9, 1989, Pokorny again visited the Runges with IMPC employee Richard Fohrer. Pokorny confirmed that the Runges' garage encroached on the centerline right-of-way as provided in Easement 200A, but the Runges refused to sign a consent-to-encroachment form that would have released IMPC from all liability.

On December 16, 1989, Tina used a home pregnancy test to confirm that she had become pregnant, but she suffered a miscarriage shortly thereafter. The Runges then sought opinions from various scientific experts regarding the possible health risks of living on their property, in addition to having EMF measurements taken of their yard and house by Environmental Management and Field Testing of Evanston, Illinois. The reliability of the testimony of the Runges' expert scientific witnesses is vigorously disputed by the parties and will be examined in greater detail below. The Runges eventually moved out of their house and filed suit against several parties, including Ameritrust National Bank ("Ameritrust"), the mortgage holder on their property, alleging that Ameritrust had failed to inform them about the "existence and extent of" IMPC's easements. Ameritrust released the Runges from their mortgage, and the Runges eventually sold the house at auction but retained ownership of the property.

The Runges initially filed suit against IMPC on May 24, 1990, and filed their first amended complaint on March 22, 1991. The amended complaint contained the following eight counts: (1) a strict product-liability claim premised on the alleged "defective condition" of the "unreasonably dangerous" electricity distributed by IMPC;³ (2) a negligence claim alleging that IMPC's failure "to exercise reasonable care in the design, installation, construction, placement and maintenance" of the line proximately caused the Runges to suffer "physical and mental harm, pain and suffering, medical expenses, the loss of enjoyment of life and other damages"; (3) IMPC's failure to warn the Runges of the "concealed danger in the transmission lines"; (4) nuisance resulting from IMPC's failure to prevent EMF from "emanating outside the designated areas of their alleged easement so as to not cause harm to the plaintiffs or their property"; (5) trespass of the "unreasonably high and dangerous levels" of EMF onto the Runges' property; (6) IMPC's breach of an assumed duty to provide the Runges "with any and all information available or known" to IMPC regarding EMF; (7) IMPC's taking of the Runges' property without just compensation as a result of its easements and the effects of EMF;⁴ and (8) a request for punitive damages arising from IMPC's alleged "willful and wanton misconduct, gross negligence,...